FIFTH SECTION
CASE OF PONOMARENKO v. UKRAINE
(Application no. 51456/17)
JUDGMENT
This version was rectified on 23 June 2023
under Rule 81 of the Rules of Court.
STRASBOURG
1 June 2023
This judgment is final but it may be subject to editorial revision.
In the case of Ponomarenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 51456/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 July 2017 by two Ukrainian nationals, Mr Dmytro Sergiyovych Ponomarenko (“the first applicant”), who was born in 1991 and died in 2017, and Ms Rayisa Oleksandrivna Ponomarenko (“the second applicant”), who was born in 1973 and living in Kyiv, both of whom had been granted legal aid and were represented by Mr V.I. Melnychuk, a lawyer practising in Kyiv;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko;
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 11 May 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the lack of adequate medical treatment and assistance provided to the first applicant during his pre-trial detention, leading to his death, and the lack of adequate reasoning in the courts’ decisions to extend his pre-trial detention. Furthermore, the case concerns the allegations of the second applicant that the State should be held responsible for the death of her son, the first applicant, and for her serious suffering caused by the inhuman and degrading treatment of her son while in detention.
2. On 7 April 2016 the first applicant was arrested on suspicion of rape of a minor and of theft. On 8 April 2016 the Podilskyi District Court of Kyiv ordered his detention, indicating in general terms as the reasons for its decision the gravity of the charges against him, his previous conviction for a similar crime, the risk of his absconding from the investigation or influencing the victim, and the possibility of his committing new offences. The first applicant’s detention was extended several times for similar reasons to those indicated in the court’s initial detention order.
3. On 9 March, 5 May and 17 July 2017 the trial court, which had examined the indictment against the first applicant, rejected as unsubstantiated the defence lawyer’s requests for the first applicant to be released on account of his poor state of health that was life-threatening.
4. From 10 May 2016 onwards the first applicant was held in the Kyiv temporary detention centre (“the SIZO”). Upon admission he was examined by a physician and registered as having been HIV-positive since 2008. On 25 October 2016, following a deterioration in his health, the first applicant was diagnosed with tuberculosis of the internal mammary lymph nodes and cryptococcal meningitis. The next day he was hospitalised in the SIZO medical unit, where he started receiving anti-tuberculosis treatment. His state of health deteriorated to the extent that he was unfit to participate in the court hearings scheduled for 1 and 11 November 2016. On 22 November 2016, following a blood test, he was diagnosed with stage 4 HIV.
5. The anti-tuberculosis treatment had some positive effect on the first applicant’s state of health, although that was short-lived as he did not adhere to the proposed treatment. The Government submitted copies of several certificates issued by the SIZO doctors between 20 January and 23 February 2017, attesting the first applicant’s refusal to receive treatment. Later in February 2017, after his state of health had deteriorated again, the first applicant gave his consent for treatment, and it was resumed.
6. On 2[1] March 2017 the first applicant was prescribed an antiretroviral therapy. During the treatment his state of health was not stable, causing the development of side effects such as a high temperature, a headache, stomach pain, intoxication syndrome and immunosuppression. The combination of these problems led to the anti-tuberculosis treatment being interrupted. From 27 March to 3 April, from 6 to 12 June and from 16 to 23 June 2017 the first applicant received inpatient treatment in Kyiv City Hospital no. 5 (“the civilian hospital”). The transfers to the civilian hospital were the result of the sharp deterioration of his health while in the SIZO. In particular, on 16 June 2017 it was noted that he was having difficulty swallowing and speaking. Upon discharge each time from the civilian hospital his state of health was assessed as being of medium gravity.
7. Between November 2016 and July 2017 the applicants submitted numerous applications requesting the penal authorities to provide the first applicant with medical care, as his state of health had significantly deteriorated. In April, June and July 2017 the SIZO authorities, when updating the trial court about the first applicant’s state of health, explained that it was deteriorating and might lead to his death, and that he required inpatient treatment at a specialist medical facility and nursing care as he was unable to control his bowel movements. They also requested the trial court to consider changing the preventive measure in respect of the first applicant to a non-custodial one. On 26 July 2017 the SIZO prepared a synopsis regarding the first applicant’s health, indicating that his grave condition could be explained by the resistance to medicines caused by long-term HIV infection and his failure to undergo regular medical examinations and receive antiretroviral therapy before his arrest.
8. The case file contains a photograph of the first applicant, allegedly taken on the premises of the Podilskyi District Court of Kyiv on 17 July 2017, when an application for the extension of his detention was examined. The photograph shows the first applicant in a helpless position in a wheelchair.
9. According to the second applicant, she visited her son in the SIZO on 18 July 2017 and saw that he could not move, speak or eat.
10. On 21 July 2017 the Court applied Rule 39 of the Rules of Court, indicating to the Government that the first applicant should have access to and be provided with appropriate specialised care, including being transferred to a specialist medical institution.
11. On 31 July 2017 the first applicant was again transferred to the civilian hospital and on 2 August he was placed in the intensive care unit. On 7 August he died of cryptogenic sepsis.
12. Following the first applicant’s death, on 10 August 2017 a criminal investigation into medical negligence was instituted. At the time of exchange of the parties’ observations (September 2019), it was still ongoing.
13. On 27 June 2017, in response to the second applicant’s complaints that her son, while in the civilian hospital, had been handcuffed to his bed and that his hands had been tied with a bedsheet, the head of the SIZO informed her that in accordance with domestic legislation, handcuffs were applied to all detainees who underwent medical treatment in civilian hospitals.
14. On 30 June 2017 the second applicant applied to the head of the SIZO, seeking leave for a meeting with her son in the SIZO medical unit. She wished to look after her son, whose poor state of health and helpless condition required special care. On 6 July 2017 she was informed that the domestic legislation did not provide for meetings with detainees outside the specially equipped area or the possibility for individuals from outside the penal system to look after them.
THE COURT’S ASSESSMENT
15. The Court takes note of the death of the first applicant and of his mother’s wish to continue the proceedings in his stead. The Government have not objected. Having regard to the circumstances of the present case, the Court accepts that the first applicant’s mother (the second applicant) has a legitimate interest in pursuing the application in the first applicant’s stead (see Ergezen v. Turkey, no. 73359/10, §§ 27-30, 8 April 2014).
16. Both the first applicant, while still alive, and the second applicant, in maintaining her son’s application and joining the case on her own behalf after his death, complained under Articles 2 and 3 of the Convention that the State had failed to provide the first applicant with appropriate care and assistance in detention given his serious physical disability and had thus failed to protect his health, physical well-being and life. The second applicant further complained under Article 3 of the Convention about her son’s handcuffing in hospital and submitted that she had endured serious mental suffering on account of the inhuman and degrading treatment of her son while in detention.
17. The Court has examined the Government’s objections regarding non‑exhaustion of domestic remedies by the first applicant in respect of the complaints of the lack of medical treatment and the failure to be provided with appropriate care and assistance in detention given his serious physical disability, and by the second applicant in respect of the serious mental suffering she had endured by witnessing the ill-treatment to which her son had been subjected during his pre-trial detention, and decides that they should be dismissed for reasons similar to those examined in Melnik v. Ukraine (no. 72286/01, §§ 68 and 70, 28 March 2006), and Salakhov and Islyamova v. Ukraine (no. 28005/08, §§ 95-100 and 103-04, 14 March 2013).
18. The Court further notes that the remainder of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
19. The Government asserted that the applicants’ complaints were unsubstantiated. They pointed out that the first applicant had refused the anti‑tuberculosis treatment offered to him in January and February 2017.
20. The relevant principles under Article 2 of the Convention concerning the State’s obligations in the area of healthcare can be found in Makharadze and Sikharulidze v. Georgia (no. 35254/07, §§ 71-73, 22 November 2011) and Salakhov and Islyamova (cited above, §§ 126-33).
21. Upon his admission to the SIZO in May 2016, the first applicant was considered to be infected with HIV. However, no test was carried out until November that same year, by which time his HIV infection had advanced to stage 4, entailing serious consequences for his health. The Government did not give any reasons for the delay in his testing or the administration of the relevant treatment, which had been initiated almost four months after the test. As to the tuberculosis, it would appear that he contracted that disease while in detention, since no anomaly in his chest had been detected upon his admission to the SIZO.
22. Regarding the Government’s contention that the first applicant had refused the anti-tuberculosis treatment offered to him in January and February 2017 (see paragraph 5 above), they did not show that the short-term refusal could have seriously impaired the treatment’s effectiveness.
23. Although he received medical treatment for both diseases while in the SIZO, his state of health was already deteriorating. He received inpatient treatment on an intermittent basis. Both the doctors from the civilian hospital and the SIZO administration suggested that the domestic court change the preventive measure in respect of the first applicant in view of the seriousness of his state of health, but to no avail (see paragraph 7 above).
24. It would appear that as long as he remained in detention, it would have been impossible for the first applicant to receive better treatment against the background of the serious deterioration of his condition which eventually led to his death. In the absence of a justified explanation from the Government regarding the need for the first applicant’s detention and having regard to its above considerations concerning the deficiencies in his medical treatment which resulted in the continued deterioration of his state of health and eventually his death, the Court finds that the authorities failed to adequately discharge their positive obligation to protect the first applicant’s health and life.
25. The Court therefore concludes that there has been a violation of the substantive limb of Article 2 of the Convention.
26. It appears from the case file that, from April 2017, the first applicant’s state of health meant that he had problems with his ability to move, speak, eat and control his bowel movements; he required nursing care (see paragraph 7 above). The Government have not shown that the first applicant was provided with nursing care or any organised assistance while in detention. On the contrary, the second applicant’s application to the head of the SIZO seeking leave for a meeting with her son in the SIZO medical unit serves as good evidence supporting the first applicant’s complaint (see paragraph 14 above).
27. Having regard to the established principles concerning the scope of the specific obligations imposed on the State by the duty of care towards sick prisoners (see Helhal v. France, no. 10401/12, §§ 47-52, 19 February 2015), the Court finds that the above-mentioned situation caused the first applicant unnecessary and avoidable mental and physical suffering, diminishing his human dignity and amounting to inhuman and degrading treatment in breach of Article 3 of the Convention.
28. The Government did not comment on the merits of this complaint. The case file contains copies of the second applicant’s application to the Kyiv City Prosecutor’s Office complaining that the first applicant, while in the civilian hospital, had been handcuffed to his bed and that his hands had been tied with a bedsheet, and of a reply from the head of the SIZO informing the second applicant that in accordance with domestic legislation, handcuffs were applied to all arrested individuals who underwent medical treatment in civilian hospitals (see paragraph 13 above).
29. In the absence of an explanation by the Government rebutting the second applicant’s statement, the Court finds plausible the applicants’ statements that the first applicant had indeed been handcuffed to his bed while in the civilian hospital and that his hands had been tied with a bedsheet. It further considers that the first applicant’s physical condition at the time of the alleged events did not appear to require special security arrangements that would justify the application of handcuffs in hospital. Having regard to the Court’s findings regarding a similar issue in Salakhov and Islyamova v. Ukraine (cited above, §§ 150-57), the Court finds that such treatment was in breach of Article 3 of the Convention.
30. The Court observes that in the present case, the second applicant could only passively witness her son’s suffering in a state of complete helplessness. Her attempts to save his life or at least to ease his suffering do not seem to have been addressed with the required diligence by the court dealing with the first applicant’s criminal case or by the SIZO when it refused her applications to have handcuffs removed from the first applicant or to grant her leave to see her son in the SIZO medical unit (see paragraph 14 above). The circumstances of the present case are similar to those examined in Salakhov and Islyamova (cited above, §§ 203-06).
31. In the light of the foregoing, the Court finds that the second applicant has been a victim of inhuman treatment in breach of Article 3 of the Convention.
32. The first applicant also raised a complaint under Article 5 § 3 of the Convention regarding his lengthy and unjustified pre-trial detention, which had lasted from the day of his arrest on 7 April 2016 until his death on 7 August 2017. Being covered by the well‑established case-law of the Court, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 3 of the Convention in the light of its findings in Ignatov v. Ukraine (no. 40583/15, §§ 41-42, 15 December 2016).
33. The second applicant also raised other complaints, in particular that the investigation into her son’s death had been ineffective and that the Government had failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of the Court, in breach of Articles 2 and 34 of the Convention. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
34. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
35. The second applicant claimed 20,000 euros (EUR) in respect of pecuniary damage and EUR 70,000 in respect of non-pecuniary damage. Her claims covered damage sustained in respect of both the first applicant and herself.
36. The Government contested those claims.
37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the second applicant EUR 15,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the second applicant, within three months, EUR 15,600 (fifteen thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 1 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Carlo Ranzoni
Deputy Registrar President
[1] Rectified on 23 June 2023: the text was “6 March 2017.”